Articles

Employer Liability For Sexual Harassment By a Subordinate

Date: March 6, 2014

The U. S. District Court for the District of Columbia recently dealt with a question that has rarely been addressed in sexual harassment/ hostile work environment cases: under what circumstances is an employer liable for the sexual harassment of an employee by one of that employee’s subordinates?

The lawsuit was filed by a woman employed by the D.C. Government. She sued the D.C. Government for, among other things, a hostile work environment. She claimed that a man under her supervision at the agency where she worked had verbally and physically harassed her by making lewd gestures and comments, grabbing her breast, patting her on the buttocks, pretending to spank her, brushing against her, and “staring menacingly” at her.

The D.C. Government filed a motion asking the Court to dismiss the case. In response to the motion, the Court noted that there was sufficient evidence upon which a jury could conclude that the harassment was “severe and pervasive,” the standard that must be met by a plaintiff in proving a hostile work environment claim.

But the Court still had to determine the standard by which the employer should be judged liable. Specifically, the Court had to decide what standard to apply in gauging whether a supervisor could maintain a suit against her employer for the offensive actions of her subordinate.

The D.C. Circuit had already long established the test for evaluating hostility between two co-workers, neither of whom supervises the other: in such cases, an employer may be held liable for the harassment of one non-supervisory employee by a fellow non-supervisory employee if the employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective action.1 But does this standard likewise apply in cases where the harasser is a subordinate of the person who has made the harassment / hostile work environment claim?

After reviewing decisions from other courts around the country that had dealt with similar situations, the Court developed a modified standard based on the “co-employee” standard, with an additional hurdle for the supervisor-plaintiff:

An employer may be held liable for the harassment of a supervisor by a subordinate if the employer knew or should have known of the harassment and failed to implement prompt and appropriate action; but an employer will not be held liable for the sexual harassment of a supervisor by a subordinate where the supervisor-plaintiff had the ability to stop the harassment and failed to do so.

The Court determined that the parties had not yet provided enough evidence concerning the woman’s ability as a supervisor to stop the harassment. For example, it was not clear whether removal of the employee was necessary to stop the harassment or, if so, whether the woman had the ability to remove the subordinate. The Court denied the motion to dismiss on that basis, but left open the possibility that it would entertain another motion, if sufficient evidence was presented regarding the woman’s ability to stop the harassment.

The preceding is provided for informational purposes, and is not intended as legal advice.The publication of this case note does not create an attorney/client relationship. Note that application of federal and state employment laws is often very dependent upon the situation under which a claim may arise.